White v. Riggle

• Decision Date: 22 December 1911
• Parties: TERRITORY ex rel. WHITEv.RIGGLE, Probate Clerk.
• Court: New Mexico Supreme Court

16 N.M. 713

120 P. 318

TERRITORY ex rel. WHITE

v.RIGGLE, Probate Clerk.

Supreme Court of the Territory of New Mexico.

Dec. 22, 1911.

Appeal from District Court, Lincoln County; before Justice Wright.

Mandamus by the Territory, on the relation of W. R. White, against J. G. Riggle, Probate Clerk and ex officio Recorder of Lincoln County, and against Charles A. Stevens, Sheriff, and against T. W. Watson, Treasurer and ex officio Collector of the County, to compel each of them to remove their offices from the Town of Lincoln to the Town of Carrizozo, pursuant to an election removing the county seat to the latter town, with actions by the Territory against the same defendants, denominated “accusations,” for removal from office for their refusal to remove their offices to Carrizozo. A demurrer to the complaint in each proceeding having been sustained, relator and plaintiff appeal. Affirmed.

Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, and no purpose to repeal is clearly expressed or indicated, the court must give effect to both if possible, under the rule that repeals by implication are not favored.

W. H. H. Llewellyn, Charles A. Spiess, and E. L. Medler, for appellant. T. B. Catron, for appellees.

MECHEM, J.

The six causes above settled will be disposed of as one and by this opinion, for the reason that the law controlling all of the cases is the same. In other words, the determination of one of these cases involves the decision of all.

These cases all grow out of the attempt to remove the county seat of Lincoln county from the town of Lincoln, where it has long been located, to the town of Carrizozo, in the same county. Causes Nos. 1,412, 1,413, and 1,414 are suits wherein it is sought to compel the defendants, who are admitted to be officers of the county of Lincoln, to remove their offices from the town of Lincoln to the town of Carrizozo, at which place the board of county commissioners has provided offices for the use of those officers. Nos. 1,415, 1,416, and 1,417 are denominated “Accusations for the removal from office” of the same officers who are defendants in the other three cases, for the reason that they have declined and refused to remove their offices to the town of Carrizozo.

The complaint alleges that on the 6th day of July, 1909, there was presented to the board of county commissioners of the county of Lincoln a petition, in writing, praying the board of county commissioners to call an election to submit to the qualified voters of said county the question of the removal of said county seat to Carrizozo; that on the 9th day of July, 1909, the board granted the prayer of the petition, and ordered an election to be held on the 17th day of August, 1909, which, after due notice, was held; that a canvass of the votes of said election showed that Carrizozo received 900 votes for the county seat and Lincoln 613 votes therefor; that on canvassing the vote, August 23, 1909, the board declared Carrizozo to be the county seat of Lincoln county; that following this declaration the said board provided offices, at the expense of the county, for the above officers, as referred to above; that the defendants failed and refused, and still do so, to establish and maintain their offices at Carrizozo, the county seat, and, although requested, failed and refused to keep there the books, papers, and official records pertaining to their offices. And, in the case of the defendant Stevens, the petition for the writ of mandamus sets up the refusal of the defendant Stevens, the sheriff, to establish and maintain his office in the town of Carrizozo, and remove the prisoners in his custody to the town of Carrizozo, although requested so to do.

A demurrer was interposed by the defendants in each of the above causes, denying the sufficiency of the facts alleged in the complaint, and alleging the following specific grounds of demurrer: “(3) Because there has been no courthouse and jail completed at Carrizozo for the county of Lincoln, of which this court will take judicial cognizance; (4) because the defendant has no right or lawful power to keep his office or books, records, and papers of his office at Carrizozo, in the county of Lincoln, until a courthouse and jail shall have been completed at said place; (5) because there is no law of this territory requiring or allowing this defendant to move his office and books, papers, and records thereof from the town of Lincoln, where the same are situated, to the town of Carrizozo, in said county of Lincoln, until there shall be erected and completed a courthouse and jail at said town of Carrizozo”-and other points of demurrer involving the right of the county commissioners to rent offices at the town of Carrizozo, aud denying the right of such officers to occupy offices at the town of Carrizozo.

Counsel on both sides of these cases submitted them to the court for determination upon the law, as the same is declared in the Compiled Laws and the Session Laws of 1903 and 1907; there being no disposition to question the fact that there was no completed courthouse and jail at the lown of Carrizozo, nor the other facts pertaining to the attempt to change the county seat from Lincoln to the town of Carrizozo. The fact that the petition does not allege the completion of the courthouse and jail at the town of Carrizozo lays a sufficient foundation for the demmurrer to rest upon, under the particular circumstances of this case.

An examination of the briefs discloses the fact that the difference in the contentions of counsel is based upon the diverging view of counsel as to the proper construction to be placed upon the sections of the law involved. Counsel for the defendant officers, in behalf of the demurrer, relying upon section 633, Compiled Laws 1897, as the law governing this case; whereas counsel for the plaintiff relies upon section 1, c. 38, of the Laws of 1903, and chapter 87 of the Laws of 1907, amendatory of chapter 38 of the Laws of 1903.

The clause of section 633, Compiled Laws, relied upon by counsel for the defendants, reads as follows: “So soon as convenient buildings can be had at such new county seats the courts for said county shall be held therein, and so soon as the new courthouse and jail shall have been completed, the county commissioners shall cause all the county records, county offices and property pertaining thereto, and all county prisoners shall be removed to the new county seat.”

Section 1 of chapter 38, Laws of 1903, is as follows: “Section 1. That the offices of county officers in this territory shall be established and maintained in the county seat; so it shall be illegal to hold or maintain said offices outside of the place which is required in this section.”

This act was amended by chapter 87, Laws of 1907, so as to read as follows: “Section 1. That all sheriffs, treasurers and probate clerks of various counties in New Mexico, shall establish and maintain their offices and headquarters...